REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS – Other Affirmative Relief

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Reimbursement of costs as make-whole remedy: PERB analyzes request for reimbursement of costs incurred as a result of a respondent’s underlying conduct under traditional make-whole principles. (See Omnitrans (2009) PERB Decision No. 2030-M, p. 30 (Omnitrans) [awarding attorney fees in ancillary case made necessary because of respondent’s violation]; Camelot Terrace, Inc. v. NLRB (D.C. Cir. 2016) 824 F.3d 1085, 1092-1093 (Camelot Terrace, Inc.) [upholding NLRB’s order that employer reimburse union for bargaining costs as a remedy for having engaged in bad faith bargaining, and reasoning that “[a]n award of bargaining expenses remedies an unfair labor practice by ensuring that, upon resolution of the [charge], the injured party can return to negotiations on the same footing it occupied before the violation.”].) While a make-whole remedial order under Omnitrans and Camelot Terrace, Inc. may include, among other items, staff costs or attorney’s fees reasonably incurred as a result of a respondent’s unlawful conduct, any attorney’s fees awarded pursuant to such make-whole principles normally may not include attorney’s fees expended simply to litigate the unfair practice charge at issue—under the American Rule, such an attorney fee award is appropriate only as a litigation sanction, if the charging party demonstrates that the claim, defense, motion, or other action or tactic was “without arguable merit” and pursued in “bad faith.”